Jerimia Heffner v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 31, 2016
• Docket: 02A05-1510-CR-1806
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Mar 31 2016, 8:22 am

this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Anthony S. Churchward Gregory F. Zoeller Fort Wayne, Indiana Attorney General of Indiana Michael G. Worden Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jerimia Heffner, March 31, 2016 Appellant-Defendant, Court of Appeals Case No. 02A05-1510-CR-1806 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Wendy W. Davis, Appellee-Plaintiff. Judge Trial Court Cause No. 02D05-1506-F6-546

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 02A05-1510-CR-1806 | March 31, 2016 Page 1 of 5 Case Summary [1] Jerimia Heffner (“Heffner”) appeals the sentence imposed after he pleaded

guilty to three counts of Level 6 felony invasion of privacy 1 for telephone calls

that he made to his then-wife Tina, (“Tina”), from the Allen County Jail. He

specifically contends that the trial court erred in ordering two of the sentences

to run consecutively. Because the three phone calls stem from three separate

acts of criminal misconduct, the trial court did not abuse its discretion when it

ordered consecutive sentences.

[2] We affirm.

Issue Whether the trial court abused its discretion in ordering consecutive sentences.

Facts [3] In March 2015, thirty-five-year-old Heffner, who was incarcerated in the Allen

County Jail, was under a no-contact order with his then-wife Tina. On March

2, Heffner telephoned Tina and told her not to cooperate with the authorities

and to contact the small claims court using a “deep voice like a man” to change

a court date. (App. 14). The following day, March 3, Heffner telephoned Tina

and told her not to cooperate with Child Protective Services because it could

1 IND. CODE § 35-46-1-15.1.

Court of Appeals of Indiana | Memorandum Decision 02A05-1510-CR-1806 | March 31, 2016 Page 2 of 5 “f*** up his entire case and he could get six years.” (App. 14). On March 5,

Heffner telephoned Tina and told her that she was “the one that caused this

sh*t.” (App. 14).

[4] The State charged Heffner with three counts of Level 6 felony invasion of

privacy, one count for each of the three telephone calls. Heffner pleaded guilty

to the three counts without a plea agreement. The trial court sentenced him to

two years each for Counts I and II, with one year executed and one year

suspended to probation, sentences to run concurrently. The trial court further

sentenced Heffner to one and one-half years for Count III. The court ordered

that sentence to run consecutively to the two-year concurrent sentence for

Counts I and II, for a total sentence of three and one-half years. Heffner

appeals his sentence.

Decision [5] Heffner argues that the trial court erred in ordering his sentence for Count III to

run consecutively to the concurrent sentence for Counts I and II. Specifically,

he contends that his “three (3) charges of Invasion of Privacy all stemmed from

one episode of criminal conduct.” (Heffner’s Br. 11). Therefore, according to

Heffner, his total sentence was limited to the advisory sentence for the next

higher class of felony, which is three years.

[6] Sentencing decisions rest within the sound discretion of the trial court. Bisard

v. State, 26 N.E.3d 1060, 1070 (Ind. Ct. App. 2015), trans. denied. INDIANA

CODE § 35-50-1-2(c) provides that, except for statutory crimes of violence,

Court of Appeals of Indiana | Memorandum Decision 02A05-1510-CR-1806 | March 31, 2016 Page 3 of 5 the total of the consecutive terms of imprisonment . . . to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct shall not exceed the advisory sentence for a felony which is one (1) class of felony higher than the most serious of the felonies for which the person has been convicted.

An “episode of criminal conduct” refers to “offenses or a connected series of

offenses that are closely related in time, place, and circumstance.” I.C. § 35-50-

1-2(b). Whether multiple offenses constitute a single episode of criminal

conduct is a fact-sensitive inquiry to be determined by the trial court. Schlichter

v. State, 779 N.E.2d 1155, 1157 (Ind. 2002). In making this determination, we

look to the simultaneous and contemporaneous nature of the crimes, which

would constitute a single episode of criminal conduct. Reed v. State, 856 N.E.2d

1189, 1200 (Ind. 2006). Separate offenses are not part of a single episode of

criminal conduct when a full account of each crime can be given without

referring to the other offenses. Reeves v. State, 953 N.E.2d 665, 671 (Ind. Ct.

App. 2011), trans. denied.

[7] Here, our review of the record reveals that Heffner made the three phone calls

on three different days, and a full account of each call can be given without

referring to the other calls. Specifically, each call involved a separate invasion

of the victim’s privacy. In addition, each call contained a different threat or

instruction. The crimes were distinct in nature and were not part of a

continuous transaction. We therefore conclude that Heffner’s crimes were not

Court of Appeals of Indiana | Memorandum Decision 02A05-1510-CR-1806 | March 31, 2016 Page 4 of 5 part of a single episode of criminal conduct, and the trial court did not abuse it

discretion in ordering consecutive sentences.

[8] Affirmed.

Kirsch, J., and Riley, J., concur.

Court of Appeals of Indiana | Memorandum Decision 02A05-1510-CR-1806 | March 31, 2016 Page 5 of 5